Fighting name check delays
Interview for US citizenship or green card is generally thought of being a final step. More and more frequently though the applicant who has just successfully passed the citizenship interview with the USCIS is handed a notice with "unable to make a decision" box checked with the red pen. The hearing examiner's reasoning at the bottom would say: "security name check not cleared" - or not say anything. The applicant understands that some kind of a bureaucratic delay did occur; gathers all his patience and waits.
Within a year or two the patience grows thinner. The applicant calls the number on the notice or goes to a local USCIS office for an infopass appointment to find out that his name check is still pending. The applicant naturally inquires if s/he can bring any documents or furnish any information to help assure the FBI that he is a law-abiding person. The response is: "No, thank you, they have it all and there is no way USCIS can influence the way FBI works with their files. We cannot do anything from here. We shall send you to the invitation to the oath immediately when the name check clears. But as for today it is pending."
How long is the possible delay?
According to the USCIS Ombudsman, as of May 2007, 329,160 FBI name check cases are pending, and 106,738 of them are pending for more than one year.
The worst case I had in my practice included a four-year waiting period following the person's successfully passing his citizenship interview.
Meanwhile the applicant is deprived of all the benefits of the citizen's or legal permanent resident's status.
What is this name check all about?
There are three sets of records USCIC uses in course of investigating the petition.
The Interagency Border Inspection System (IBIS) combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns. This takes some time.
The fingerprints check, also known as biometrics, is performed by the FBI's Criminal Justice Information Services and requires the applicant to submit his fingerprints at a local office. These results come rather quickly and generally cause little delay.
The FBI Name check is a procedure in course of which an FBI officer is comparing a person's name against the Central Records System: "administrative, criminal, personnel and other files compiled by law enforcement." The officer is checking not only the name itself, but also various ways it could be spelled. If there is a match an agent must manually review the file or entry; not all of the archives he is comparing the name against are computerized. In other words, they are working really slowly.
Does a name check delay mean that something is wrong with the would-be citizen?
By no means, since everyone is subject to the same procedure. If anything, it means that the person's name is not rare enough to be unique and not pop up in the system however strangely spelled.
Isn't there are law that says it should not be so?
But of course: under Immigration and Naturalization Act ("INA") § 336(b) and 8 U.S.C. §1447(b) USCIS must determine whether they want to grant an applicant citizenship within 4 months after the interview.
So what is the way out?
Many people try to write letters to their Congressmen or even the First Lady. Those attempts may or may not be successful. The reason is, Congressional inquires are coming back with the same response: "case pending".
A lawsuit in federal court against the USCIS and the FBI is a way to nudge the system that works no matter what.
Suing the state sounds much scarier than in is in real life because many of those suits get dismissed very early. A complaint is filed in the federal court of the applicant's domicile. A copy of the complaint is served on the FBI, USCIS and other defendants. After receiving the complaint FBI officers can just pull out the case, perform the name check and release it in order to spare the US Trial Attorney's efforts to respond to the complaint, and make the case moot. Since name check clearance is exactly what the applicant is looking for, everybody is happy with the result. I charge $2,500 plus $450 in court costs to get you through this whole process from the beginning to the end.